New Supreme Court Term May See Key Ruling on Religious Liberty

October 6, 1992

NEW YORK (Oct. 5)

One of the cases slated to be decided by the U.S. Supreme Court during its current session, which began Monday, is likely to impact the way constitutionally protected religious liberty is defined in America.

The Supreme Court is expected to refine its position on when the government can legitimately curb religious practices, and when that interference infringes on Americans’ right to the free exercise of their religion, in its ruling on a case called Church of the Lukumi Babalu Aye vs. City of Hialeah, Fla.

That is so far the only major case relevant to Jewish concerns that the Supreme Court has agreed to hear, though several other church-state and hate-crimes legislation cases are being considered for possible deliberation.

The Hialeah case will be watched closely by Jewish groups because it is the first to test the scope of a 1990 Supreme Court ruling that gave the government more latitude in adopting laws that could infringe on people’s religious liberties.

In that case, Smith vs. Oregon, the court ruled that a state government no longer needed to prove a “compelling interest” in enacting or enforcing laws that restrict religious practices, as long as those prohibitions do not target one particular religion. It is known as the “peyote decision,” because the court ruled that Oregon could prosecute Native Americans who used the illegal hallucinogen peyote as part of their religious rites.

Jewish groups objected to the sweeping language of the ruling, because it appeared to give local or state governments broad leeway to enact and enforce laws prohibiting religious practices. They expressed concern that ritual practices such as kosher slaughter or drinking Kiddush wine could easily be outlawed.

In the case being considered by the court this term, the city government of Hialeah, Fla., adopted ordinances prohibiting the slaughter of animals for ceremonial purposes. Kosher slaughter was exempted.

The ordinances target adherents of Santeria, a religion in which chickens, goats, sheep, turtles and other animals are ritually sacrificed. Santeria has attracted growing numbers of African-American and Caribbean-American adherents, with some 50,000 practitioners now living in southern Florida, according to court documents.

Members of the Church of the Lukumi Babalu Aye charge that the Hialeah ordinances violate their right to the free exercise of their religion.

Jewish groups are lining up behind the church and have filed friend-of-the- court briefs on its behalf.

“There’s not a lot of sympathy in the Jewish community for animal sacrifice, but this is the first major free-exercise case since the peyote decision,” said Steven Freeman, legal affairs director at the Anti-Defamation League, which signed onto one of the briefs. “This case gives the Supreme Court an opportunity to re-examine the current state of free-exercise law,” he said. “The court should understand how potentially devastating the peyote decision is.”

Also backing the Santeria church are Agudath Israel of America, the American Jewish Committee, the American Jewish Congress, the National Jewish Commission on Law and Public Affairs and the National Jewish Community Relations Advisory Council.

There’s an outside chance the Supreme Court will use the Hialeah case to reconsider the principles at the heart of the peyote decision, and could even restore free-exercise protection to its original state, according to David Zwiebel, legal counsel for Agudath Israel, an Orthodox group.

More likely, said Zwiebel, is that the court will look at the Hialeah ordinances as something specifically targeting one group’s practices. If the court even takes “compelling state interest” into consideration, that itself is “a partial victory” for religious liberties, he said.

There is concern, particularly among Orthodox groups, that language like that in the Hialeah ordinances might reach beyond health and safety issues and be upheld on the basis of the pain and suffering of animals.

In that case, the right to slaughter animals according to the laws of kashrut could be challenged, said Dennis Rapps, executive director of COLPA, the National Jewish Commission on Law and Public Affairs, which represents the interests of observant Jews in courts and legislatures.

During the peyote case two years ago, most Jewish organizations did not file briefs, “because we thought the case had nothing to do with us,” said Zwiebel. Nobody thought the Free-Exercise Clause of the First Amendment would be virtually eviscerated.

As a result, the Jewish community was “burned by staying away from a religious liberty case we found repulsive,” said Zwiebel. The court’s decision sent a message that no Jewish organization is overlooking now, he said.

Among the other cases of interest to Jewish groups that the court may hear is one which centers on the First Amendment clause prohibiting government “establishment of religion,” that is, government backing for religious practice.

In a case called Catalina Foothills School District, Calif., vs. Zobrest, the school district is refusing to pay for a sign-language interpreter for a deaf student who attends parochial school, on the grounds that using public funds to aid a religious institution would violate the so-called Establishment Clause.

AJCongress, which has opposed public aid to parochial schools in the past, is siding with the deaf student in this case.

“We don’t see any establishment (of religion) here,” explained Marc Stern, the group’s director of legal affairs. “It’s no different than a hearing aid.”

But Stern said the case could provide the justices with a vehicle to re-examine a legal doctrine known as the Lemon Test.

The Lemon Test requires all government activity and law to meet three criteria: its principal purpose must be secular; its effect must neither enhance nor inhibit religion; and it cannot involve excessive government entanglement.

Most Jewish groups back the Lemon Test because it provides a strict standard for ensuring separation of church and state. But several of the court’s more conservative justices are said to believe the test goes so far it thwarts religion.

“At the moment, the Lemon Test is clearly endangered,” according to Jerome Chanes, co-director for domestic concerns at NJCRAC, an umbrella group for 113 Jewish community relations councils and 17 national organizations.

On Monday, the court decided not to hear a case called New York School Boards Association vs. Sobol, thereby letting stand a lower court ruling allowing clergy to serve on AIDS advisory councils in public schools.

The decision means that the current regulations allowing clerical participation do not violate the constitutionally mandated separation of church and state.

Hearing the case would have given the court an opportunity to further define the role religious groups can play in the political process.

Two separate but similar cases the court may accept that are of particular concern to the Jewish community are the hate-crimes legislation cases submitted by the attorneys general of Wisconsin and Ohio.

The supreme courts of those two states struck down laws that enhanced penalties for crimes motivated by bias. They based their decisions on a July ruling by the U.S. Supreme Court in RAV vs. St. Paul, which found such laws unconstitutional because they violate freedom of speech.

While the Wisconsin and Ohio laws were more narrowly written than the St. Paul ordinance, the high court’s July ruling does not bode well for the future of hate-crimes legislation, say legal experts.

“There’s a division of opinion within state supreme courts” over whether hate- crimes legislation is constitutional, he said, which should be an incentive for the U.S. Supreme Court to rule on at least one of the cases.